Violation of Net Neutrality in India: analyzing the mistaken nemesis of the free speech

Arun Bhadauria, Student, Gujarat National Law University, Gandhinagar

The agencies like Nasscom and various campaigns, driving the vox populi in India, have shaped a perception that violation of net neutrality unavoidably infringes the right to free speech. Using the examples of net neutrality (violations), the present paper argues that this approach is fallacious. The intricate relation between the two would have to be understood in light of the dimensions of free speech being explained by the Supreme Court in earlier judgments, experiences on net neutrality, and long term perspectives.

The paper explains that the private network providers could be absorbed within the framework of Article 12, allowing a judicial interface between the right to free speech and net neutrality at the pre-neutrality regulation stage, much alike the post-regulation stage. Then, the paper proceeds to argue that traffic shaping unlike traffic throttling violates net neutrality but not freedom of speech for the justifiability of community welfare. While zero-internet applications might violate the right indirectly, no indirect violation, virtually or judicially, attracts constitutional liability. In fact, zero- rating services coincide with the right of free speech by diversifying the internet as a medium of speech. Lastly, using the investment theory, the paper postulates that the net neutrality law, on the other hand, would create a chilling effect on free speech by harming prospective innovations

INTRODUCTION

The internet has swiftly ushered to establish itself as an open and effective medium of democracy and free speech, unknown of boundaries. Since its birth, most network providers have treated internet openly and fairly, owing to which it has largely been deregulated in most countries. The concept of an open internet popularly understood as an extension of a pre-American British law concept of common carriage[i] is a sine qua non for the meaningful exercise of the freedom of speech. But does freedom of speech online always yearn for an incumbency upon network neutrality, especially in India, as suggested by the advocates[ii] of net neutrality?

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